dissenting.
This is an appeal from the judgment of the circuit court quashing a writ of review. The appeal is taken to this court “in like manner and with like effect as from a judgment of such circuit court in an action.” OCLA, § 11-210. There is no bill of exceptions and none was required in order to present the limited issues which were raised by the writ of review.
The first question is, of course, whether the defendant has been vested by the statute with jurisdiction to act upon plaintiff’s application, either to grant or deny it. The majority opinion is based on the assumption that such jurisdiction was vested by statute in the defendant. Otherwise there would be no occasion for any discussion of the findings of the administrative body or of the evidence. Nor would it be necessary to enter into any consideration concerning the permissible scope of the inquiry which may be made in determining whether or not a license should be granted. While I have had some doubt as to the aforesaid jurisdictional question, I accept the majority view on that point. The jurisdictional question may be phrased thus; did the defendant have jurisdiction to entertain plaintiff’s application for leave to purchase *103milk from producers holding a quota upon the Salem market, process that milk in its licensed Portland plant and sell it in its licensed Salem stores? The answer, while not free from doubt, is in the affirmative.
The further inquiry is limited by the scope of procedure by writ of review. The writ does not lie to correct mere errors in the exercise of jurisdiction or to inquire whether the rulings of the defendant upon the law and the evidence and in the application of the law to the evidence are correct. School District No. 68 v. Hoskins et al., 194 Or 301, 314, 240 P2d 949; Bechtold et al. v. Wilson et al., 182 Or 360, 186 P2d 525, 187 P2d 675. Jurisdiction to act being assumed, the only question remaining before the circuit court was whether the defendant exercised its judicial functions erroneously, “that is, illegally and contrary to the course of procedure applicable to the matter before it.” Lechleidner v. Carson, 156 Or 636, 644, 68 P2d 482; Asher v. Pitchford, 167 Or 70, 115 P2d 337. In this connection we may examine the record to determine whether or not there was any substantial evidence to support the findings of the administrator. Bechtold et al. v. Wilson et al., and Lechleidner v. Carson, both supra. We may also determine whether the conclusions drawn by the administrator from his findings were clearly wrong, unreasonable or arbitrary. Richardson v. Neuner, 183 Or 558, 194 P2d 989.
The majority opinion recites at considerable length the evidence which was presented to the defendant in the hearing. The recital of this evidence leaves the reader in doubt as to whether it is being considered only for its bearing upon the narrow issues which are before us in view of the scope of the writ of review, *104or whether, on the other hand, the evidence is being considered by this court as if we were vested with the powers of an appellate administrative tribunal. The time-honored principle that this is a government of laws, and not of men, not only requires that administrative bodies be restrained within their proper field, but also, that judges should not convert the courts into administrative agencies by the usurpation of nonjudicial functions. With this comment I pass on to a consideration of the fundamental question in the case.
The first assignment of error challenges the jurisdiction and power of the defendant to prevent the plaintiff from entering the Salem market in the manner indicated. The real contention raised in the petition for a writ of review was that the plaintiff had a right to purchase mill? in the Salem production area, process it in Portland and sell it in Salem without securing any new license at all, and that the defendant had no power to prevent plaintiff from so doing. That contention is the basis of plaintiff’s first assignment of error. It is this jurisdictional issue of which the plaintiff says, “The most vital point of this appeal rests upon the first assignment of error.”
I am in accord with the majority in the view that the court has no choice except to determine whether the Act confers upon the defendant the power to deny an application for a license to a processor-distributor because of the adverse effect which the granting of the license would have upon the milk industry. If it may, then the question as to whether the field is already adequately served becomes relevant, though not solely determinative. If it may not, then the adequacy of the existing service and all questions as to the effect upon the best interests of a stabilized market *105or the likelihood of demoralization of the industry become immaterial.
The petition for a writ of review, among many other specified grounds for attacking the defendant’s order, adds the following: “Section 34-1006 OCLA specifies all the grounds upon which a license may be denied and defendant did not deny said license on any of the grounds therein specified.” I shall show that the provisions of that identical section require that the defendant give consideration to economic aspects in considering applications for a license.
But my point at the moment is that throughout the brief and oral argument of the plaintiff, two propositions only are seriously argued; first, the question of jurisdiction, and second, the contention that the “order denying the license was based on findings unsupported by substantial evidence and on conclusions which could not be properly drawn from said findings.” These issues form the basis for the only assignments of error, two in number. Throughout briefs and oral argument the plaintiff has not challenged the right of the defendant to inquire whether the granting of the license would adversely affect the market. It does not argue that the defendant must disregard the public interest or that increases in costs are irrelevant and stabilization of the industry immaterial. On the contrary, its argument is that there is no evidence to support the findings on those issues. The majority opinion goes, outside of and beyond the argument of the plaintiff and cuts into the very vitals of the milk control system. It does not merely consider whether there was substantial evidence to support the findings. It goes further and, in substance, holds that the findings were made upon immaterial issues, and that, as a consequence, no. proper conclusions could be *106based upon them. As I read the opinion, the result reached would have been the same if those findings had been supported by the great weight of the evidence. I deem it proper to quote excerpts from the majority opinion which tend to indicate the real basis of the proposed decision. If my analysis of the opinion is correct, then the far-reaching scope thereof should be brought into sharp focus to the end that any change in the judicial construction of the existing law shall be made only after full consideration. If I have misconstrued the meaning of the decision, my error, no doubt, will be pointed out.
What circumstances may be considered by the defendant in exercising the acknowledged power to grant or deny a license after due hearing? Was the defendant entitled to consider the probable effect upon the milk industry in the Salem area if the application of the plaintiff were granted? The opinion of the majority accurately states the position taken by the defendant in its order denying the license. I quote:
“The denial resulted from the defendant’s belief that Salem is adequately served by milk processors-distributors and that a grant to the plaintiff of its requested license would be prejudicial to the economic stability of the milk industry.”
Obviously, as indicated by the findings, the economic aspects of the case were deemed to be important, if not actually controlling. If, in passing upon the application, the defendant was without authority to consider the economic factors, on the basis of which its decision was made, then, of course, the decision cannot stand, no matter how convincing the evidence may be on those aspects of the case. It is said that the statute makes reasonably clear the circumstances upon which the defendant may grant or deny licenses. *107The opinion lists what it deems to be the relevant circumstances which should be considered, as follows: Milk dealers should be capable and responsible; should have adequate personnel and equipment; should not have given indications of inability or unwillingness properly to conduct the business; should maintain adequate records concerning costs of production and expenses of processing and distributing. The court adds: “We also have in mind the sections which speak of ‘natural market areas’ and ‘territory in which conditions involved in the production, processing and distribution of milk are similar’ Again the court says: “Likewise, the defendant is familiar with the various market areas and of the conditions in them with which a milk dealer must cope.” It will be seen that, although the court has “in mind” the statutory provisions concerning natural market areas and territory in which conditions involved in production, processing and distribution are similar, and although it said that the defendant is familiar with the various market areas and of the conditions in them with which a milk dealer must cope, the court does not say that those conditions known to the defendant may be considered in passing upon the application for a license, and, I fear that the court does not mean to say so, for the entire matter is summed up as follows:
“* * * The question which he must answer after he has analyzed the record is this: Is this applicant equipped to render responsible service in the entire area which he seeks to serve. The defendant is not authorized, however, to deny a license merely because the applicant cannot indict the service which is already being rendered. ’ ’
A reading of the entire opinion indicates that the court intends to hold that when a new competing pro*108cessor-distributor seeks to be admitted to the Salem area, the fact that the area is presently being adequately served is not relevant to the issue. In the entire opinion, I find no recognition of any right of the defendant to consider whether or not the licensing of a new processor-distributor to operate in competition with those presently in the field would jeopardize the maintenance of the distributive facilities presently and adequately supplying the needs of the area, or whether it would disrupt the fair distribution of the burden, incident to the disposal of surplus, or whether it would demoralize the production and distribution of milk in the Salem market.
The majority opinion concerning the limited function of the defendant in considering applications for a license presents a question of immense importance to the administrative bodies of this state, in comparison with which the question as to whether there is substantial evidence to support the findings in the instant case becomes one of only local interest.
It is not necessary to search the record for some substantial evidence tending to indicate that the granting of a processor-distributor license would affect and tend to disturb existing conditions in the Salem market. The search has already been made. The majority opinion states as fact that the plaintiff will deal with the Salem trade in a manner different from that employed by the other principal proeessors-distributors. Its milk will contain a higher precentage of butterfat. It will be sold under a trade name. At present, milk purchased in paper cartons costs the buyer a half cent more than milk in bottles. The plaintiff will eliminate that difference if the buyer chooses Lucerne milk. The milk processed by the major dealers is made available to the consumer by delivery service; not so the milk *109to be sold by plaintiff. Tbe plaintiff would buy from tbe dairyman, thus reducing tbe total of tbe milk produced under Salem quotas which will be processed by the present processors-distributors, of which there are five. Producers now selling to the principal processors are subject to the burdens which are imposed by the authorized pooling regulations. That is to say, they get a lower price for surplus milk when such surpluses arise. If the plaintiff buys direct from producers, “it will not be subject to the effects of pools, unless the defendant alters his regulations * s In addition to the statements of fact in the majority opinion, there are recitals concerning the evidence offered to show that the effect upon net incomes of present processors would be adverse. The fact that opinion evidence was received raises no question for our determination in this proceeding. The witnesses were experts, and in any event, we do not sit to review the rulings of administrative bodies on the admissibility of evidence, or to weigh that evidence. If the defendant has any authority to consider the effect which the granting of plaintiff’s application would have upon the industry and the public; if it could consider its familiarity “with the various market areas and * * # the conditions in them with which a milk dealer must cope”; if it could consider the bearing of probable increasing costs or the necessity for stabilization of the market or the danger of demoralization of production and distribution or the evils of discrimination, then, the pending case is one in which such effects should be considered, not by us, but by the defendant. No opinion need be expressed as to the merits of the milk control law. It may be of doubtful value, but the entire basis of the law, as this court has held, is the establishment of controls limiting competition and *110production and prices in the public interest, and by means which we have held to be constitutional.
Let us see if the majority opinion goes beyond the contentions of the plaintiff. This brings us to the case of State ex rel. Peterson v. Martin, 180 Or 459, 176 P2d 636. In that case the plaintiff, as Director of the Department of Agriculture, brought suit to enjoin the defendant from selling milk to the public in the city of Sheridan without a license. Defendant claimed that he had a license. The plaintiff replied, in substance, that a certificate manifesting a license was issued without authority and by inadvertence. The trial court enjoined the defendant from selling milk in the city and we affirmed the decree, one judge dissenting. We held that the certificate issued was void and therefore that defendant was without a license to sell and distribute in Sheridan. This portion of our decision has no bearing on the pending case. The portion of the decision which does have importance is that part which considers and determines whether to enjoin Martin from distributing milk in Sheridan, he being without a license.
In April 1945 an application by defendant Martin for a license as a dealer in Sheridan was denied by the Director of Agriculture and a writ of review sued out by Martin was dismissed in the circuit court on 5 November 1945. On 31 December 1945 Martin again applied for a license as producer-distributor, and it was pursuant to this second application — not the one involved in the proceedings on writ of review — that the questions arose which were decided in the Peterson —Martin case. On his appeal to this court Martin argued that “Upon an application for a distributor’s license, the Department of Agriculture has no discretion to refuse such a’ license and must allow the same *111unless it appears that the distributor applicant has been guilty of any of the acts set forth in Section 34-1006 O.C.L.A.” Again he assigned as error the granting of the injunction. The issue presented by Peterson in the Martin appeal was similar to that in the pending case. Prom his brief I quote:
“Specifically the Legislature provided a method of classifying and limiting licenses as a means of controlling, to some reasonable extent the distribution system existing in the fluid milk industry.
# # * # *
“* * * Obviously the only method of controlling distribution so as to remove the evils present therein was to avoid excessive distribution facilities with overlapping routes which inevitably led towards increased costs to the dealer and ultimately increased cost in prices to the consumer.”
The brief then urged upon this court the administrative construction of the Act and said:
“* * * This interpretation of the Milk Control Act as affording the power now challenged by the appellant should be decisive of the instant controversy, particularly in light of the fact that the statute has been repeatedly amended and the Legislature has never seen fit to deny or revoke the attempted exercise of power with respect to classification and limitation of licenses(Italics ours.)
This was said in the year 1946.
In the Peterson-Martin case this court refers to the fact that evidence had been reeéived “under the rule” concerning the adequacy of house-to-house delivery and concerning the alleged superior quality of the milk sold by Martin. The court said:
“* * * Defendant suggests that, under such circumstances, he cannot be charged with having created a public nuisance. Upon that question, how*112ever, (even if it were pertinent, which, in view of the fact that the comparative quality of the milk was not in issue, it was not) the findings of the Circuit Court for Yamhill County were against him. No appeal was taken from that court’s decision, and it is now res judicata.”
This is the only effect given by this court to the decision on the writ of” review case. And it is impossible from the opinion to determine what was the basis .of the decision on the writ of review. Certainly it decided no issue which arose after the date of the order which it reviewed. One thing is sure; whatever the grounds of decision in the Peterson-Martin case might have been, the court clearly based the decision on the power of the defendant to refuse a license to a processor-distributor on grounds which had nothing to do with the responsibility or equipment of the applicant. I quote:
“It is contended that the Act does not vest the administrator with discretion whether to issue or to refuse to issue a milk-distributor’s license to a properly qualified applicant. The argument is that if the administrator has no discretion to refuse to issue a license, then, by a parity of reasoning, it follows that, except for violation by the licensee of specific provisions of section 34-1006, O.C.L.A., (none of which are involved in the present case) he is without authority to revoke a license. ’ ’
The “argument” appears to be inescapable. If the administrator had no discretion to issue or to refuse to issue a license, then the court could not enjoin the defendant from selling milk, regardless of the question concerning the unauthorized issuance of the certificate. It will be noted that the court expressly stated that the provisions of OCLA, § 34-1006 were not involved in the case. That is the section concerning the *113granting and cancelling of licenses, requiring the keeping of accounts and records, etc. The issue was directly presented by the administrator, and directly decided by the court. The court said:
“The administrator, on the other hand, insists that the Act is designed to regulate the whole range of activity involved in the production, distribution, manufacture, storage and sale of fluid milk for human consumption. The evils which the legislature sought to remedy included those of cut-throat competition among dealers, excessive and duplicate milk routes, spasmodic and irregular supply of wholesome milk to the consumers, and a depression of prices to the producers. The administrator suggests that it is obvious that, to remedy those evils, the legislature intended to invest him with power to adopt such reasonable regulations as would tend to further the general purposes of the Act. * * *”
The court then quoted the preamble of the Act, which recites the unjust, destructive and demoralizing trade practices which are carried on in the production, sale and distribution of milk, and which impair the dairy industry and constitute a menace to the welfare of the inhabitants. The court considered whether the Act contained sufficient basic standards for the guidance of the administrator and in that connection considered the effect of Savage v. Martin, 161 Or 660, 91 P2d 273. The court said:
cc* * * Section 34-1009, O.C.L.A., empowers the administrator to classify licenses, to limit them to a particular city or village, or to a particular market or markets, and to define what shall constitute a natural market area. A market is defined to include • ordinarily no, more than one city or town together with reasonably contiguous territory. When two or more towns or cities are so closely adjacent to one another that they comprise but one natural market area and are subject to the *114same marketing conditions, such adjacent towns or cities and contiguous territory may be included in one market area. A market area may include only territory in which conditions involved in the processing and distribution of milk are similar. It was necessary, of course, to leave to the determination of the administrator the question of the existence of the required facts upon which the status of an area as a natural market depends. * *
After reviewing the authorities, the court continued:
“We hold that the standards set up by the Act are sufficiently adequate to guide the administrator in his determination of the propriety of issuing or refusing to issue a license. ’ ’
Applying that conclusion to the facts of the case, the court stated its conclusion as follows:
“* * * As the administrator had determined that the Sheridan market was already adequately served, and that the granting of a license to an additional distributor to sell milk therein would be economically wasteful, not in the public interest, and harmful to a stabilized production and distribution of fluid milk and cream for human consumption, we are of the opinion that the refusal of the administrator to permit Mr. Martin to enter the Sheridan market area was a reasonable exercise of a valid discretionary power vested in the administrator by the Act. The existence of facts justifying the administrator’s action, after due notice and a hearing, is presumed, and there was no competent evidence in the record to overcome such presumption. ’ ’
In my opinion, a reading of the last-mentioned case will conclusively demonstrate that what was said was not dictum, and was adopted by the court after deliberation and notwithstanding a dissent by the author of the majority opinion in the pending case. The stabilization of the law by means of adherence to *115sound precedent is at least as important as the stabilization of the milk industry. The decision in State ex rel. Peterson v. Martin should not be overruled.
The majority opinion, as we have shown, lists conditions which must be met before the defendant is authorized to issue a license. They relate to the equipment of the applicant “to render responsible service in the entire area which he seeks to serve.” These conditions are not imposed out of solicitude for the applicant, or to keep him from financial loss by reason of his entry into a field which he cannot adequately supply. The conditions are imposed for the benefit of no particular individual, but to prevent the disruption of the milk industry by the entry into the competitive field of ill-equipped or irresponsible dealers.
The findings and conclusions of the defendant were not made merely because the Salem market was adequately served, or because of an adverse effect upon the interveners. The findings themselves demonstrate that the license was denied because of the prospective adverse effect upon the milk industry in the Salem area, which is illustrated by the testimony of the two principal processor-distributors therein. The statement in the majority opinion that in buying from producers the plaintiff would “not be subject to the effects of pools” is of particular importance. It supports the contention of the defendant that the granting of a license to plaintiff would tend to demoralize the market, both in respect to production and distribution. If plaintiff would not be subject to the effects of pools, then the losses resulting from surplus mill?: pools would be borne wholly by others unless the pooling system were changed.
The legislature has empowered the defendant to regulate the milk industry, including manufacture, dis*116tribution and sale. OCLA, § 34-1003 as amended by Laws 1951, chapter 639. But this is not the only authority vested in the defendant. It is directed to ascertain what prices in each locality and market area will best protect the milk industry in the public interest. OCLA, § 34-1012 as amended by Laws 1951, chapter 397. The same statute requires that the Board shall take into consideration all conditions affecting the milk industry, including the prices necessary to produce a reasonable return, both to the producer and to the milk dealer. The 1951 amendment specifically authorizes the defendant to take into consideration reasonable unit costs of hauling, processing, selling and delivering. After investigation, the defendant is directed to fix minimum prices.
‘ ‘ The board may classify licenses and may issue licenses to dealers to store or manufacture or sell milk limited to a particular city or village or to a particular market or markets within the state, and may define what shall constitute a natural market area and define and fix the limits of the milkshed or territorial area within which milk shall be produced to supply any such marketing area . * * *.” OCLA, § 34-1009.
Can it be said that the defendant can insure a reasonable return to the milk dealer if it is powerless to control the number of dealers who operate processing plants in a given market area? The defendant is further authorized to define and limit the geographical area from which the fluid milk shall be produced for any given market. It may determine under uniform rules what proportion of the milk “produced by each producer shall be considered as marketed as fluid milk for human consumption and what proportion so produced shall be considered as surplus.” It may provide for pooling of both. OCLA, § 34-1013. The license *117issued to the plaintiff for the Lucerne Milk Company expressly provides that the plaintiff may, under that license, operate as a processor-distributor in the Portland sales area. In the light of the statutory provisions, the license should be construed to mean that the plaintiff, through its Lucerne plant, may process milk and distribute the same in the Portland sales area. Employing the words of the statute, plaintiff may manufacture (process) and sell milk limited to a particular market or markets, namely, the Portland market. The only other conceivable construction would be to hold that the processor-distributor license was, in effect, two separate licenses, one to process and one to distribute. The dismembered processing license would then mean merely that the defendant may limit the location of the processing plant to a particular city or market. This construction would leave any licensee who has a processing plant anywhere in the state free to enter any production area in the state, buy milk from producers and sell it in the corresponding sales area. Under the theory of the majority opinion, the defendant would be powerless to interfere except to see that a competitor, having no license, and seeking one, should be equipped to render responsible service. On this theory, the more powerful the invading competitor in the processing field, the more destructive would be his competition and the less would be the power of the state through its agency to control market conditions. Any such construction would emasculate the Act and withdraw from the defendant the power to consider in the issuance of licenses the facts relevant to the chief purpose of the Act, namely, the elimination of economic evils through uncontrolled competition.
Three separate provisions of the statute require a liberal interpretation of the power of the defendant. *118The defendant may adopt rules and orders necessary to carry out the provisions of the Act. § 34-1003. This provision undoubtedly applies to the authority to fix prices. Again, in connection with the power to define production and marketing areas and to establish pools, the defendant may make any other order or exercise such further power as may be necessary for the full accomplishment of the aforesaid objects. OCLA, § 34-1013. Again it is provided that the Board shall have power to make all necessary rules and orders to carry out the true intent and purpose of the Act. OCLA, § 34-1015. All of the expressly enumerated powers have been upheld by the court. The defendant has not been given unfettered discretion by the three general provisions to which reference has been made. This court sits to see that the exercise of these implementing powers is limited and can only be employed to carry out the true intent and purpose of the Act, which purpose has already been defined by this court.
From a recent treatise I quote pertinent passages:
“Where there is ample provision for notice, hearing, and argument, and where it is thought these sufficiently guarantee a fair and intelligent disposition of the case by informed and impartial administrative action, broad standards are likely to be upheld.
“Where provisions for judicial review permit the court to exercise a large measure of superintending control over the agency, this reasoning is even more effective in persuading the courts to sustain statutes setting up a very vague standard. ’ ’ Cooper, Administrative Agencies and the Courts, pp 43, 44.
In American Power and Light Co. v. Securities and Exchange Commission, 329 US 90, 91 L ed 103, this problem received scholarly attention in the light of the *119realities of modern industry and the practical limitations upon legislative measures for the regulation of complex industrial and commercial activities. The statute for the guidance of administrative action provided only the broadest general standards. The United States Supreme Court said:
“* * # They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear. * # #
“The judicial approval accorded these ‘broad? standards for administrative action is a reflection of the necessities of modern legislation dealing with complex economic and social problems. See Sunshine Anthracite Coal Co. v. Adkins, 310 US 381, 398, 84 L ed 1263, 1273, 60 S Ct 907. The legislative process would frequently bog down if Congress were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Private rights are protected by access to the courts to test the application of the policy in the light of these legislative declarations. Such is the situation here. ’ ’
And see Opp Cotton Mills, Inc. v. Administrator of Wage and Hour Division of Department of Labor, 312 US 126, 85 L ed 624; Carlson v. Landon, 342 US 524, 96 L ed 547; Yakus v. United States, 321 US 414, 88 L ed 834.
We have repeatedly said that “The evils which the Oregon Milk Control Law are intended to correct are chiefly economic ones.” Savage v. Martin, 161 Or 660, *12091 P2d 273. See also State ex rel. Peterson v. Woodruff, 179 Or 640, 173 P2d 961. Considering the Act as a whole, it is apparent that control through the exercise of the licensing power is an integral part of the entire program, the avowed purpose of which is the stabilization and control of the industry.
Surely, the majority does not now intend to strike down the entire Act by judicial fiat. Its constitutionality was established in 1939 notwithstanding a dissent by three members of the court, including the author of the majority opinion in the pending case. I have high regard for judicial firmness, once considered conviction has been reached, but in cases of this kind, the time should come when individual opinion must give way to precedent. In Savage v. Martin, supra, (1939) this court upheld the validity of the provisions authorizing price-fixing, the establishment of quotas and pools and the provisions vesting in the defendant power to define and limit the geographical area from which fluid milk shall be produced for any given market or sales area. It was held in that case, at page 681, that the statute was enacted “primarily to promote the public interest by relieving those in the milk industry from hazards to which it is exposed in an uncontrolled market.” It was further held that:
“* * * The standards set up, in our opinion, are legally sufficient and the legislature has not delegated its power to make law, but has only conferred upon the board authority to make administrative rules (United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563) in carrying out the legislative policy. * * *”
Eelying upon this arid subsequent decisions, the legislature has seen fit to continue and from time to time modify the administrative set-up which now *121exercises supervision and control over a multi-million dollar industry. Other legislative acts establishing administrative agencies have been passed haying in view the legislative principles established by this court realtive to administrative powers and the delegation thereof. The legislature has not set up a separate specific yardstick as a standard limiting administrative action concerning prices, another concerning quota, another for pools, and so on, for production and market areas and the like. All of those powers are clearly limited by the expressed policy of the entire Act which looks toward stabilization of the industry by the elimination of uncontrolled competition. The exercise of the powers is limited, not alone by statutory phases, but also by the duty of this court to strike down arbitrary administrative action wherever found. If this court deprives the defendant of power to consider the economic effect of its action in granting or withholding processors’ licenses, the door will be opened for unrestricted competition at the very heart of the milk industry, with the result that the exercise of the other powers vested in the defendant and confirmed by this court will be ineffective for the accomplishment of the legislative purpose.
One additional provision of the statute merits attention. OCLA, § 34-1006 expressly authorizes the defendant to decline to grant or to revoke a license when it appears “that a milk dealer has committed any act injurious to the public health, welfare or to trade or commerce in milk to such an extent as to obstruct the purposes of this act * * V’ The text of the quoted provision is perhaps not fortunate, but its purpose is clear. If a licensed milk dealer may lose his license because of acts injurious to trade or commerce in milk such as to obstruct the purposes of the *122act, then, the legislative intent is apparent that the defendant may decline to grant a license if the granting of it would result in a condition which would authorize its revocation.
Now let us see what is the basis of the majority decision. The defendant contends that the processor-distributor license issued to plaintiff limits it to processing and distributing milk in and for the Portland market and that if plaintiff desires to process mill? from the Salem production area in Portland and sell it in Salem it must have a processor-distributor license which is not limited (as is its present one) to a particular city or village or particular market or markets, to wit, the city of Portland and the Portland market area but which covers the Salem area. Thus far, it appears that the majority opinion agrees. I quote:
“* * * pkg plaintiff’s Portland processing plant [Lucerne] has a license issued by the defendant which authorizes it to process mill? for sale in the Portland market area only. * * *”
Again I quote therefrom:
“* * * we see that the defendant possesses authority to restrict a milk dealer to a single market or authorize him to process for and sell milk in more than one. * * *”
Again I quote:
“* * * The act * * * deems that licensing consists, not only of determining which applications should be granted and which rejected, but also the number of markets which should be assigned to a licensee. * * *”
I agree. Thus, the basis of the majority opinion is clear. On the one hand the plaintiff challenged jurisdiction, and as a second-ditch defense argued that there was no substantial evidence to support the findings *123and decisions of defendant. On the other hand, the majority opinion assumes that the defendant had jurisdiction to grant or deny a new license but that the denial of a license was based upon considerations which the law does not permit the defendant to entertain. Let us see if the majority opinion goes beyond the contentions of the plaintiff. The decision is directly opposed to the decision in Peterson v. Martin. The defendant in the pending case relied upon Peterson v. Martin as a decision on the ‘ ‘ precise question. ’ ’ The plaintiff made no attack upon the authority of that case, but in fact, tried unsuccessfully to distinguish it.
I have yet to be told how this court could have granted an injunction restraining the defendant Martin from selling milk in Sheridan unless it held, first, that the defendant had power to grant or deny licenses, and second, that a license should not be granted for the reasons set forth in the opinion of the court, none of which related to the responsibility or equipment of the defendant. If there be any innovation in this ease, it is not to be found in the dissent.
A further word with respect to the pooling provisions of the statute is in order. Section 34-1013, OCLA provides, in substance, that the defendant shall have power, under uniform rules and regulations to determine “what proportion of the milk produced by each producer shall be considered as marketed as fluid milk for human consumption and what proportion so produced shall be considered as surplus; and (c) to provide for the pooling and averaging of all returns * * * subject to such rules and regulations as may be imposed for the control of surplus production * i:= If the plaintiff should be permitted to purchase milk from producers in the Salem area, process it in Portland and sell it in its Salem stores, the producers who *124sold mill? to the plaintiff would not be subject to the burden of having part of their, product classified as surplus at-a lower price and this, as found by the defendant, would throw the burden of the surplus upon all producers other than those supplying Safeway stores. The majority opinion states that “the plaintiff will not be subject to the effects of pools, unless the defendant alters his regulations whereby some producers supply the Curly pool and others the Mayflower.”
I suggested the economic complications which would arise in the production field if there were two pools in Salem and if, in addition, the plaintiff was buying from producers who were subject to no pool at all. If it be intimated that the two-pool system in Salem is illegal under OCLA, § 34-1013, I should be compelled to differ. We must not overlook OCLA, § 34-1016 which exempts cooperative associations from the provisions of OCLA, § 34-1013 which would otherwise govern and which asserts the right of cooperatives to a pool of their own. Mayflower is a cooperative association. What would be the economic effects on producers of a system whereby two groups received their proceeds from different pools at different rates and a third group was wholly free from the burden of pools and surpluses, is not for this court to determine. It presents a question for experts, and the decision would be one affecting producers more than processors-distributors.
The concurring opinions are supported by eloquently expressed economic views, personally held, concerning the evils of controlled economics and the blessings of free enterprise. If those views are sound, as they may be, they should be addressed to the legislature, or to the voters, rather than to the courts. For *125this reason I withhold comment. I agree that the depression of the thirties’ has long since passed, but I question the relevancy of that comment in view of the fact that the Act was upheld in 1939 and again in 1947. Was it intended to intimate at this late date that the legislature is without power to establish economic controls because no depression now exists 1
I propose no departure from established law or from an administrative construction which preceded our decisions and was confirmed by them over a total period of twenty years. I do protest what I deem to be an overruling of a decision, the doctrine of which was clear and which was without legal challenge until challenged by the court which rendered the decision. The dissent of Mr. Justice Lusk, in which I join, sets forth compelling reasons why this court should not, and in fact, cannot, change the law at this time without usurping legislative power. If the administration of the law as construed by this court has been injurious to the dairyman or to the public, the fact has not been brought to our attention in this case, but it may be brought to the attention of the legislature now in session.
I do not contend that the defendant has power to deny a license to a processor merely because the defendant “believes” that sufficient milk service is already being rendered to the community. The defendant has no right to deny a license merely because he believes - - -. He holds a hearing, receives evidence and makes findings which must be supported by evidence and must not be arbitrary. He is not controlled by a single issue, i.e., whether sufficient mill? service is already being rendered. He is empowered to consider what the effect of granting the license would be upon the stability of the milk industry *126and the economic welfare of producer and dealer and public. Among other matters, he may consider the adequacy or inadequacy of existing service.
No contention is here made that the processor or distributor should be substituted as the object of the Act’s solicitude. The interest of producer and public is no doubt paramount, but the extraordinary limitation which the majority now places upon the licensing power affects not only the processor-distributor but his relations to the producer and to the public and to that extent, it strikes at the heart of the mill?: industry.
I do not advocate a defense of the status quo or the protection of monopoly. I do contend that the function of the defendant is not limited by statute to the wielding of a rubber stamp marked “approved” on every application for a license by one who is financially responsible and well equipped, but that the statute, considered as a whole, and viewed in the light of years of administrative and judicial construction, empowers the defendant to consider the broader economic aspects of the case with due regard for the interests of producer, distributor, and the public. If the defendant has abused its power, the judicial remedy is to correct the abuse, not to abolish the power. The latter function is legislative. For these reasons, I dissent.